America, Spooked

June 18, 2013 | CQ Weekly

Oklahoma Sen. James M. Inhofe is one of the chamber’s fiercest security hawks, but the recent string of revelations about intelligence programs that collect vast amounts of Internet and phone record data pushed him to the edge.

“I’m concerned you can go too far with something like this,” says Inhofe, the ranking Republican on the Armed Services panel. “I actually supported it originally. I felt a little more comfortable supporting it with Bush as president than the current president,” Inhofe says, referring to the surveillance programs that began under President George W. Bush and were continued by the administration of President Barack Obama. “Is that shocking?”

Minnesota Democrat Al Franken, meanwhile, is one of the Senate’s staunchest privacy advocates. But after taking a closer look at the programs in classified briefings, he is worry-free.

“I can assure you that this isn’t about spying on the American people,” Franken told a home-state television station. “I have a high level of confidence that this is used to protect us, and I know that it has been successful in preventing terrorism.”

This apparent role reversal of Inhofe and Franken reflects how much the revelations about the surveillance programs have upset the traditional balance on Capitol Hill between security and civil liberties. Lawmakers are confronted in public with uncomfortable details about the enormous scale of information being gobbled up by the National Security Agency under anti-terrorism laws that they passed. One NSA program has been vacuuming up telephone records for millions of Americans for seven years, while the second allows agencies to demand private customer communications from the nation’s largest Internet companies.

The disclosures have given momentum to privacy advocates who, since the terrorist attacks of Sept. 11, have often found themselves on the losing side of congressional battles. But there are deep institutional hurdles to any meaningful rewrite of the two main underlying anti-terrorism laws, the Patriot Act and the Foreign Intelligence Surveillance Act, particularly with the continued threat of new terrorist plots. Any changes would likely have to be driven by a concerted public outcry, one that goes well beyond the current opposition.

While privacy and civil liberties advocates are hopeful of building such a movement, it will probably take further revelations to generate a true backlash. In the meantime, alterations to law and policy are more likely to be at the periphery, although some of the outrage could spill into other debates over privacy and cybersecurity legislation.

Indeed, by the middle of last week, House and Senate leaders on both sides of the aisle appeared to be circling the wagons, and an administration counteroffensive was taking root. Just the week before, House Speaker John A. Boehner declared that the White House needed to justify the rationale for the phone records program. By June 12, the Ohio Republican was defending the NSA: “These programs are very important for the security of the American people, and they help us in a big way go after the terrorist threat that does in fact remain,” Boehner said at a conference hosted by Washington law firm BakerHostetler, adding that the programs are legal, constitutional and subjected to ample congressional oversight.

That neither the Patriot Act nor the FISA law, last updated in 2008, is due to expire for several years also means there are no obvious legislative mechanisms to force this debate to occur. Privacy advocates will have to find vehicles for their proposals elsewhere.

Still, even if privacy groups find their momentum is eventually stifled, they now have new avenues of attack, not only in Congress, but also in the courts.

Prominent new allies, such as Wisconsin Rep. Jim Sensenbrenner, a Republican who introduced the original Patriot Act, have joined their more traditional supporters, such as Senate Democratic Whip Richard J. Durbin of Illinois. Newly allied strange bedfellows are working together — such as libertarian Republican Rep. Justin Amash and liberal-minded Rep. John Conyers Jr., both of Michigan — to roll back some executive branch surveillance powers.

And other items on their agenda, for example legislation affecting cybersecurity or electronic-communications privacy, might start to bend their way.

Disclaimer: The opinions expressed within this article are the views of the writer and do not necessarily
reflect the views and opinions of Congress.org